Relenting is not the same as consenting to sex

Original article published Here

A New Zealand cricketer charged with rape had his trial conclude with a hung jury last week. The group of eight men and four women failed to reach a unanimous verdict over the alleged assault, and the accused, Scott Kuggeleijn, will be allowed to play when the cricket season begins in October, before he is re-tried.

Kuggeleijn, who plays for Northern Districts, is accused of raping a 20 year old woman in May 2015. After meeting at a friend’s house, the pair had gone to bed together where they engaged in some “kissing and fondling”. Kuggeleijn’s alleged victim says she made it clear on two separate occasions that this was as far as their intimacy would proceed. She says the alleged assault occurred at dawn the following morning, when Kuggeleijn pinned her arms above her head and raped her.

Unsurprisingly, cross-examination from Kuggeleijn’s lawyer appeared to fixate on the voracity with which the woman ‘resisted’. Defence counsel Philip Morgan argued that the woman had not said ‘no’ in the moment immediately before Kuggeleijn allegedly perpetrated the assault, and that she didn’t repeatedly say ‘no’ while it was happening. Because apparently consent is something to be wheedled or goaded out of someone; wear them down enough until they give in, and they might as well have said yes anyway. Right?

In his questioning, Morgan asked if Kuggeleijn’s alleged victim understood the difference “between a woman relenting and a woman consenting”. She replied that she did, saying, “I did not consent. I relented because I had no other options… I was held down and physically overpowered.”

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This distinction between ‘relenting’ and ‘consenting’ is a crucial point that’s so often missed or simply ignored by those seeking to find excuses for perpetrators accused of sexual assault.

It seems astonishing that we keep finding ourselves in the position of needing to remind people what sexual consent looks like, but here we are. All too often, excuses for sexual assault and rape are made on the basis of completely arbitrary (not to mention regressive) factors like whether or not the victim had been drinking, what they’d been wearing, to what degree of physical intimacy they’d already engaged with the perpetrator and, perhaps most worryingly, whether or not they ‘fought back’.

But apart from reinforcing the idea that sexual assault can be somehow ‘invited’ by improperly behaved victims (the vast majority of whom are women easily targeted by victim blaming narratives), the belief that sexual assault is easily ‘fought’ is simply incorrect. There is ample data to demonstrate the existence of the ‘freeze response’, and it doesn’t take a great deal of effort to understand the impulse behind it.

Most circumstances of sexual assault do not follow the prescribed outline of Evil Monster Lurking In Alleyway. Rather, they occur in arguably more ‘benign’ circumstances: in people’s own beds or the beds of people they know, or in familiar environments. And for many people, there are only so many times you can have your ‘no’ ignored before you simply resign yourself to what’s happening.

‘Relenting’ is not the same as ‘consenting’. Especially not when clear directives to a person’s wishes have been repeatedly given and summarily discarded.

This is one of the other great tricks that rape culture plays: forcing its victims into accepting some kind of complicity in their assault by twisting what is essentially an act of self preservation into an act of grudging compliance.

Making the decision to cease resistance is not the same as enthusiastically consenting to sex. Survivors of sexual assault know this, but so too do the perpetrators of it. And not only do the perpetrators know it, but they’re instructed in this thinking by the rape culture which continues to demand that its victims account for their ‘failure’ to adequately resist. Someone says no? No problem. Just keep pushing until that no either becomes a yes or just a conspicuous bubble of silence.

How many times do we need to talk about the importance of affirmative or enthusiastic consent before that message sinks in? How many times must we remind people that consenting to kissing is not the same as consenting to sex? That going to bed with someone isn’t signing away your right to dictate the terms of what happens to you once in that bed?

I’ve heard too many accounts from women – many of whom are my friends – about their own experiences of ‘relenting’ to coercion. Though there are countless people who defend this system (and the numerous ways in which it privileges men while excusing any accountability they need to take for their actions), is it actually the kind of society people want to live in? One where sex can be cajoled and forced out of people who will invariably experience some level of trauma afterwards?

We obviously need to keep hammering home this point, because the message just isn’t sinking in. We need to talk to our children about sex and consent, but we need to talk to other adults about it too. We need to talk to our friends, our siblings, our colleagues and even – or especially – our partners.

For too long, the message around rape education was that No Means No. But it seems clear that to all too many people, ‘no’ doesn’t mean anything except ‘try harder’.

Relenting isn’t consenting. And if that’s your benchmark for what mutual sexual engagement looks like, I have news for you – you are not a good person.

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Jesse Altham

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Hey! My name is Jesse and I’m a 23 year old from Fremantle, WA. I’m finishing up my Diploma of Youth Work with North Metro TAFE, completing my last practical placement here with the YEP crew. I am extremely passionate about politics, advocacy and education and I’m so fortunate to be working with YEP in the space of peer education.